Eight students there spent the spring quarter writing, rehearsing, and preparing to perform publicly an original musical theater production entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.” Informed by queer theory, the work is a critical and political commentary on heterosexuality norms in American society. Professors were involved in supervising and approving the project, which was scheduled to be performed this weekend in campus facilities…

The students’ musical production apparently incorporates several Disney songs, which the students use to criticize and parody Disney as – in their view – a company that perpetuates gender norms through its songs and movies.

So far, so good. But before it could get off the ground and without anyone but the administration scaring the hell out of itself with visions of white-gloved lawyers delivering complaints to federal courthouses, the school informed the troupe that, yes, it could put on a show, but there was no way Evergreen College would assist in that endeavor.

Evergreen State College’s administration was supportive of the project initially. However, after consulting with a state attorney, the administration apparently changed its tune, writing the students in late May to advise them that the musical could not be performed on college property in its present form. Their concern? Potential secondary liability for copyright infringement.

Whereas the U.S. Supreme Court concluded in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994) that 2 Live Crew’s song “Pretty Woman” did not infringe Acuff-Rose’s copyright of “Oh Pretty Woman” and did constitute fair use because the parody commented on and substantially transformed the meaning of the original;

Whereas fair use is determined on a case-by-case basis;

Whereas in making determinations of fair use, the relevant provision of federal copyright law (17 U.S.C. §107) instructs us to consider:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and;
the effect of the use upon the potential market for or value of the copyrighted work.

Whereas fair use in educational settings is wider in scope than in commercial settings such as that addressed in Campbell v. Acuff-Rose;

Whereas the students who wrote the script, as well as the faculty who reviewed it, concur that in its use of parody “The Quisney Project presents: O.U.T.: Once Upon a Time” significantly alters the meaning of original melodies and lyrics, and offers critical commentary upon the original…

The musical would seem to be on solid ground, or at least as solid as fair use can ever be. But Evergreen, despite never having heard from the feared rights holder, much less consulted with anyone specializing in IP law (the State Attorney? Really?), stood firm, distancing itself as far as possible from members of its student body.

We therefore insist that the performance cannot go forward as it has been planned to date. There are alternatives to a public, on-campus performance of the script as we have it. These have been discussed with most of you, but none, so far as we know, adopted. We cannot allow college staff time or resources of any kind to be dedicated to the performances planned for this week. This includes any recording, publication, or broadcast by college staff.

As we have stated consistently, our decision is determined solely by copyright concerns and should in no way be taken as a negative judgment on the artistic and academic merit of the play or on the work of the Quisney Project.

It may not be a negative judgement on the content, but it’s a very cowardly move. Backing down from actual legal threats is one thing. Scaring yourself into conceding before the battle lines are even drawn is just ridiculous. Disney’s thuggish rep precedes it and it’s getting compliance without even asking.

As the WLA post shows, the show’s songs and content have substantial fair use protection built in. But if a college is willing to drop back and punt on first down just because it’s heard of Disney suing infringers, it sends the message that it’s unwilling to put up a fight to protect fair use in other academic arenas as well.

Evergreen should have thrown its support behind the program. Given the subject matter, any legal action taken by Disney would appear to be more motivated by stifling criticism than protecting IP rights. That would have been a lose-lose move and one it most likely would never have attempted. But now we’ll never know because Evergreen College surrendered preemptively.

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